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  • Writer's pictureLawtons Africa

The State of the Law during Lockdown

Authors: Candice Pillay – Director

The nationwide lockdown to curb the spread of the coronavirus was announced on 23 March 2020 amid speculation and fear around the deployment of the South African National Defence Force (SANDF), the South African Police Services (SAPS) and metropolitan police services.

President Cyril Ramaphosa’s declaration of a national state of disaster invoked the provisions of the Disaster Management Act (DMA) [1], as amended. The President did not, however, declare a state of emergency as provided for in Section 37 of the Constitution [2], which would have invoked the State of Emergency Act (SOE) [3]. It is important to understand that the powers conferred on enforcement officers during a state of emergency and a state of disaster are entirely different.

During a state of disaster, the powers conferred by the DMA [4] are to (a) assist and protect the public, (b) provide relief to the public, (c) protect property, (d) prevent or combat disruptions, and (e) deal with the destructive and other effects of the disaster. This is the overall mandate of all enforcement officers during a state of disaster.

The Defence Act (DA) [5] allows the President to deploy the SANDF in order to (a) preserve life, health or property in emergency or humanitarian relief operations; (b) ensure the provision of essential services; (c) support any department of state, including support for purposes of socioeconomic upliftment; and (d) effect national border control [6]. During this deployment, a member of the Defence Force is regarded as being a peace officer [7] as defined in section 1 of the Criminal Procedure Act (CPA) [8]. As such, SANDF members have limited powers which are subordinate to the powers conferred on members of the SAPS. In circumstances where the SANDF are involved in crime prevention activities, any persons detained or arrested, or goods seized, must be handed over to the relevant SAPS member.

The powers of the members of the SAPS are set out in the Police Services Act (PSA) [9]. Member of SAPS are to exercise these powers and perform their duties and functions having due regard to the fundamental rights afforded to all persons as set out in the constitution [10]. In this regard, a member of the SAPS has the power to detain and question any person, to search and seizure without a warrant [11], to cordon off areas for purposes of search and seizure [12], to set up roadblocks and checkpoints [13], to detain and arrest persons suspected or having committed an offence or in the process of committing an offence, and to the service of summons and warrants [14].

In addition, the PSA creates a three-prong test for the exercise of these powers: firstly, these powers must be exercised in a reasonable manner[15]; secondly, the SAPS can only use minimum force; and thirdly the SAPS can only use force when authorised to do so [16].

The PSA also confers powers on metropolitan police services and directs that metropolitan police officers are at all times officers of the peace and must exercise their functions and duties to maintain peace at all times. [17] Their powers are restricted to (a) traffic policing, (b) policing of municipal by-laws, and (c) crime prevention. In the event that metropolitan police services are involved in crime prevention, their search and seizure powers are superseded by those of the SAPS and all accused persons [18] and goods seized must be handed over to the relevant SAPS member [19]. The metropolitan police officers are also restricted to the jurisdiction of their municipality and cannot exceed that jurisdiction unless they are in pursuit of a person who has committed a crime [20].

Enforcement officers who act outside the scope of powers conferred on them during a state of disaster will be acting in violation of the various provisions of the Constitution impacting on the infringement of the rights of individuals and will be abusing those powers as set out in the relevant legislation.

If anyone wants to report any irregularities in the exercise of the powers of enforcement officers, the following numbers were provided:

Eastern Cape: +27 82 592 9888;

Free State: +27 63 225 6081;

Gauteng: +27 76 455 5718;

Limpopo: +27 78 871 4811;

KwaZulu-Natal: +27 79 895 2741;

Mpumalanga: +27 72 881 4196;

Northern Cape: +27 64 624 8203;

North West: +27 78 163 6874;

Western Cape: +27 73 890 1269.

[1] Disaster Management Act 57 of 2002 [2] Constitution of the Republic of South Africa 108 of 1996 [3] State of Emergency Act 64 of 1997 [4] Section 27(3) of the Disaster Management Act [5] Defence Act 42 of 2002 [6] Section 18(1) of the Defence Act [7] Section 20(6) of the Defence Act [8] Criminal Procedure Act 51 of 1977 [9] Police Services Act 68 of 1995 [10] Section 13 (1) of the Police Services Act [11] Section 13(6) of the Police Services Act [12] Section 13 (7) of the Police Services Act [13] Section 13 (8) of the Police Services Act [14] Section 13(4) of the Police Services Act [15] Section 13 (3)(a) of the Police Services Act [16] Section 13(3)(b) of the Police Services Act

[17] Section 64F(3) of the Police Services Act

[18] Section 64H of the Police Services Act

[19] Section 64F(2) of the Police Services Act

[20] Section 64F(3)(a) of the Police Services Act


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